Citation Nr: 1318820 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-24 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected bilateral maxillary sinusitis. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from July 1960 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board previously remanded the case in August 2012. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that another remand is warranted for additional development. Specifically, to determine the extent of the Veteran's complaints of loss of smell and loss of taste and to obtain a medical opinion as to whether they are related to (i.e., symptoms of) his service-connected sinusitis or are etiologically related to some other nonservice-connected disorder. A June 2009 private treatment records shows the first complaints of loss of sense of smell. At a December 2011 VA examination, the Veteran complained of anosmia (loss of smell) and loss of taste for four years. A March 2012 VA ENT note also shows the Veteran's complaints of a lack of smell and taste. Finally, at the last VA examination conducted in August 2011, the Veteran again complained of having loss of smell and taste. Diagnostic Codes 6275 and 6276 provide a 10 percent disability rating when there is a complete loss of the sense of smell or taste. 38 C.F.R. § 4.87a. In this regard, it is noted that, except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately unless the conditions constitute the same disability or the same manifestation. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided). The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping. The Veteran is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, 6 Vet. App. at 262. To date, however, no examiner or treating physician has ever evaluated the Veteran's complaints of loss of smell and taste. As the medical evidence just shows the Veteran's complaints of, but not the extent of, any loss of smell or taste, the Board finds that remand for a VA examination is warranted for such an evaluation. Furthermore, the Board notes that all of the Veteran's complaints of loss of smell or taste have been made in conjunction with either treatment or examination of his service-connected chronic sinusitis. The medical records show, however, that the Veteran also has nonservice-connected respiratory disorders of allergic rhinitis and obstructive sleep apnea. Thus, it is necessary to obtain an opinion as to the etiology of any loss of smell and/or taste the Veteran may have. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the extent and etiology of any loss of sense of smell or taste. The claims file must be provided to the examiner for review in conjunction with the examination. All necessary diagnostic tests and/or studies in addition to a physical examination should be conducted to determine whether the Veteran has loss of the senses of smell and taste and, if so, to what extent. If the Veteran is found to have loss of the sense of smell and/or taste, the examiner should set forth the extent of such loss to include specifically commenting on whether such loss is "complete." Thereafter, the examiner should render an opinion as to whether it is at least as likely as not that any loss of sense of smell and/or taste found on examination is related to the Veteran's service-connected sinusitis? In other words, is it a separate and distinct symptom of his service-connected sinusitis or is it etiologically related to some other nonservice-connected condition? The examiner should give a detailed explanation for the reasons for the opinion(s) provided. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. After ensuring the adequacy of the examination report and that any additional development necessary is accomplished, the Veteran's claim for an increased rating for his service-connected sinusitis should be readjudicated to include consideration of whether a separate disability rating is warranted for loss of smell and/or loss of taste. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).